Related content

The High Court of Australia unanimously dismissed the appeal in Minister for Immigration and Border Protection v WZARH [2015] HCA 40. I posted previously on the decision of the Full Federal Court. Readers will recall the issue: a refugee claimant was interviewed by one Reviewer and was told that this Reviewer would make a recommendation, but unbeknownst to the individual, the recommendation was actually made by a second Reviewer. The recommendation was that the individual was not a genuine refugee claimant, a conclusion based in large part on the second Reviewer’s assessment of his credibility as revealed by the record, which included a recording and transcript of the interview with the first Reviewer.

In the Full Federal Court, Flick and Gleeson JJ. had relied in part on the legitimate expectations of the individual. But legitimate expectations have often attracted the ire of the High Court. Kiefel, Bell and Hayne JJ. were quite firm that talk of legitimate expectation was a distraction from the key question of whether the individual had been treated fairly:

The “legitimate expectation” of a person affected by an administrative decision does not provide a basis for determining whether procedural fairness should be accorded to that person or for determining the content of such procedural fairness. It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made (at para. 30).

Here, because credibility was at issue, an oral hearing was necessary; or at least, that the individual was given an oral hearing by the first Reviewer “affords, at the very least, some practical indication of what procedural fairness required in the circumstances of this case” (at para. 40). Had he been interviewed by the second Reviewer, it “might have made a difference to the outcome” (at para. 43, emphasis original). It was at least possible that the second Reviewer might, after an interview, take a more favourable view on the matter of credibility: “The respondent could not have been in a worse position if the Second Reviewer had not been disposed, after seeing him responding to questions, to take a more favourable view of his credibility. But he may have been in a better position if the Second Reviewer had formed the impression that he was genuinely doing his best to give truthful evidence in difficult circumstances” (at para. 44). The individual should have been informed of the change of Reviewer and given “the opportunity to be heard on the question of how the process should now proceed” (at para. 46).

Gageler and Gordon JJ. also cautioned against use of legitimate expectations: “By focussing on the opportunity expected, or legitimately to have been expected, the concept can distract from the true inquiry into the opportunity that a reasonable administrator ought fairly to have given” (at para. 61). They agreed that the change of process was unfair:

The problem is that the change of procedure changed the nature of the opportunity which had previously been given to the respondent. The opportunity that had been given was an opportunity personally to convince an identified individual who was to make the assessment, including by responding to specific questions which that person raised. The opportunity became, in retrospect, an opportunity to present a case to an unknown assessor by way of a record of oral evidence and of written submissions (at para. 64).

With credibility of central importance, “fairness required that the Second Reviewer give to the respondent notice of the changed procedure, an opportunity to supplement the written submissions previously made on his behalf, and an opportunity to request supplementation of the record of interview by further oral evidence” (at para. 67).

On either approach, the decision had to be quashed, not because the process breached a legitimate expectation (a concept all members of the High Court thought unhelpful) but because it was unfair in all the circumstances.